Is there such a thing as an unconstitutional constitutional amendment? And if so, does the judge have the power to declare that amendment unconstitutional?
The question seems nonsensical or paradoxical, “rather like asking whether the Bible can be unbiblical”. Yet, if it is primarily the preserve of constitutional theorists – think of the American debate about the constitutionality of a proposed flag-burning amendment – it is nevertheless an issue with practical implications, as witnessed in the recent Pringle case before the CJEU. Here, the Court was asked to assess the validity of a Treaty amendment by reference to the European Union’s (EU) own Treaties. The Court rejected the argument that it did not have jurisdiction and affirmed its power to review the validity of the amendment.
That there might be procedural or even substantive constraints on the power to amend a Constitution is uncontroversial.
Conversely, the role of judicial review in enforcing these limits is unsettled and European constitutional courts have adopted differing approaches. The French Conseil constitutionnel considers itself to have no competence to review constitutional amendments, in the absence of an express mandate. In Ireland, where constitutional amendments are adopted by referendum, popular sovereignty prevails and no court “is competent to review or nullify a decision of the people”. On the other hand, the Hungarian Constitutional Court recently held that it it could review the procedural – but not substantive – regularity of an amendment; meanwhile the German Constitutional Court has affirmed its competence to assess both compliance with formal requirements and the substantive, entrenched constitutional principles of federalism and human dignity.
Looking further afield, some of the most interesting jurisprudence in this area has been generated by the Indian Supreme Court, which famously annulled a Constitutional amendment which sought to prohibit the judicial review of constitutional amendments on the grounds that it was contrary to the Constitution’s “basic structure”.
Case C-370/12 Pringle v Ireland
In the Pringle case, a preliminary reference from the Irish Supreme Court, one of the two key issues to be decided by the CJEU was whether a pending amendment to the EU Treaties was validly adopted (see Laurens’ post re: the ESM Treaty). Specifically, was European Council Decision 2011/199, which would amend the text of the Treaty on the Function of the European Union (TFEU) by inserting a provision on a stability mechanism into Article 136 TFEU, valid with respect to the terms of the EU Treaties themselves?
Conversely, ten of the intervening States, in addition to the Council and Commission, argued that the CJEU had “no power under Article 267 to assess the validity of provisions of the Treaties”.
Prologue – A “Simple” Treaty Amendment
In October 2010, the Franco-German Deauville Declaration posited – no doubt with an eye towards the Judges of Karsruhe (see Daniela’s post) – that a Treaty amendment to place a “permanent crisis mechanism” on solid legal footing was indispensible.
However, given the post-Lisbon institutional reform hangover, recourse to the ordinary revision procedure (Intergovernmental Conference preceded by a consultative Convention and ratification by all Member States) was unthinkable.
The cumbersome ordinary procedure was avoided by using, for the first time, the “simplified revision procedure” introduced by the Lisbon Treaty and enshrined in Article 48(6) TEU. Under this procedure, the Treaty may be amended by a unanimous decision of the European Council, after consulting the European Parliament and Commission, and subject to the approval of all Member States. The simplified procedure is, however, subject to two important limitations: first, it may only be used to amend Part Three of the TFEU, which governs the “internal policies and actions of the Union”. Secondly, it must not confer any additional competences on the EU.
Thus, European Council Decision 2011/199 was adopted, which will amend Article 136 TFEU, effective January 2013, by inserting a paragraph stating that the euro-zone countries:
“may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”
Mr Pringle Goes to Europe
Mr Pringle argued that Article 136(3) TFEU did not respect either of the conditions in Article 48(6) TEU (in addition to arguing before the national court that by approving the amendment by legislative act rather than a referendum, Ireland violated the Irish Constitution and the famous Crotty precedent).
Before the CJEU could address this issue, it first had to overcome a significant challenge to the Court’s jurisdiction. The intervening States argued that the review of a new Treaty provision is, as a matter of principle, beyond the powers of the CJEU and that “the consequence of reviewing the substantive compatibility of an agreed Treaty amendment with existing Treaty provisions would moreover be to preclude amendments to the Treaties” (para.20, AG Opinion).
The Court disagreed. First, it made the (rather formalistic) observation that it was simply assessing the validity of an “act of the institutions”, namely the European Council within the terms of Article 267.
It conceded, however, that the consequence of that act was indeed to insert a new provision of primary law in the Treaty. In this respect, the Court recognized that it did not have any jurisdiction to examine the validity of primary law. However, in light of the formal conditions enunciated in Article 48(6) which must be satisfied to avail of that procedure, the Court had a duty to ensure that the conditions are complied with and that the “law is observed in the interpretation and application of the Treaties”.
Therefore, it fell to the CJEU to verify that the procedural rules were followed, that the amendments would not affect other parts of the EU Treaties beyond Part Three and to ensure that the competences of the Union were not increased.
AG Kokott came to the same conclusion as the Court on this point, but did so by expressly recognizing that the restrictions on the content and subject matter of amendments under the simplified procedure amounted to a permissible substantive review – the Court eschewed this distinction, stating only that it would review compliance with the conditions in Article 48(6) TEU.
A Treaty-compliant Treaty Amendment?
Next, the Court had to determine whether the amendment was confined to Part Three of the Treaty and thus had to establish whether it improperly encroached upon other EU policies outside of Part Three, namely the EU’s exclusive competence over monetary policy and the power to coordinate economic policy, enshrined in Part One TFEU.
The Court held that objective of the stability mechanism, namely to “safeguard the stability of the euro area as a whole”, is “clearly distinct” from the objective of monetary policy, that is, to maintain “price stability”. Consequently, the Court held, the amendment was not capable of affecting exclusive EU competence in monetary policy.
With regard to economic policy, it adopted a different tack. It is quite evident that the stability mechanism will affect economic policy. Rather, the Court focused on the fact that the EU does not have any equivalent power or legal basis to establish a similar stability mechanism. This signified that Member States are “entitled to conclude an agreement between themselves for the establishment of a stability mechanism of the kind envisaged by Decision 2011/199”, provided that they comply with their obligations under EU by subjecting it to “strict conditionality”.
Aside from the fact that this holding appears to be begging the question, it leads to an unsettling conclusion: the amendment does not overextend Part Three because it, essentially, does not change anything. By the Court’s own admission (and illustrated by the plain fact that the ESM Treaty was adopted prior to the amendment entering into force), Article 136(3) TFEU is cosmetic and entirely redundant.
This is further confirmed by the next finding– Article 136(3) TFEU did not create any new competences on the EU since it did not create a legal basis for any action which was not possible previously.
The Court thus concludes that “nothing is capable of affecting the validity of Decision 2011/199”.
And so the Court affirmed its jurisdiction to subject Treaty amendments to judicial review, including an assessment of their content or substance (albeit only to the extent provided for in Article 48(6) TEU). In doing so, it upheld the validity of the first Treaty amendment adopted by the simplified revision procedure, but only, ironically, on the basis that the amendment was essentially impotent.
Moreover, the clear severance of ESM from Article 136(3) TFEU, and thus any roots in EU law, appears specious in light of the remainder of the judgment, which upholds the role of the EU institutions (including the Court) in the ESM and points to the importance of (Commission administered) conditionality on the one hand, while on the other, the application of the Charter of Fundamental Rights is excluded because the ESM is not within the scope of EU law. These positions are difficult to reconcile…or are they simply a manifestation of the complex – or rather solipsistic? – relationship between the EU legal order and international law?
 Beyond the topic of this post, the Court also rejected a challenge to the admissibility of the question. Ireland argued that Mr Pringle was precluded from requesting a preliminary reference on the basis that the correct avenue to challenge the Decision was an action for annulment under Article 263 TFEU. The Court found that he was not precluded from requesting a preliminary ruling since it was “not evidently… beyond doubt” that Mr Pringle would have had standing to bring an action under Article 263